“Well Regulated Militia”

“well regulated Militia” (Second Amendment)

STATUTORY REGULATION OF THE MILITIA PRE-EXISTED THE CONSTITUTION BY MORE THAN 150 YEARS

“well regulated Militia” (Second Amendment)

When THE PEOPLE incorporated “the Militia of the several States” into their new Constitution’s federal system, they knew full well that these were statutory institutions already in existence, separate in every State and each one the creature of its own State’s laws. When THE PEOPLE referred to “[a] well regulated Militia” in the Second Amendment, they knew exactly what the salient principles of “regulat[ion]” were, because those principles could be found, repeated again and again, in statute after statute the Colonies and then the independent States had enacted throughout the 1600s and 1700s. And when THE PEOPLE authorized Congress “[t]o provide for organizing, arming, and disciplining, the Militia” (footnote 3), they knew to the last detail what those activities entailed, because they were familiar with the “well regulated Militia” the Colonies’ and States’ statutes had produced in the past.

Although the Constitution did not supply painstakingly detailed definitions, it cannot have left the meanings of its key terms—“well regulated”, (footnote 4) “organizing”, “arming”, “disciplining”, “governing”, “training”, (footnote 5) “the people”, “keep”, “bear”, “Arms, and “infringe[ ]” (footnote 6) —to be settled by the editors of popular dictionaries. When ratifying the Constitution in 1787 and 1788, WE THE PEOPLE would never have assigned to “the Militia of the several States” the vital responsibility and authority “to execute the Laws of the Union, suppress Insurrections and repel Invasions” (footnote 7)without some measure of certainty that the Militia would always be “well regulated” for those tasks, and therefore without some expectation, firmly based on experience, as to how they would be “well regulated”. As any American of that era could see on inspection, the Constitution’s federal system itself precluded a delegation to Congress of unlimited discretion to fix—in any whimsical manner its Members might choose—all of the standards to be applied within the general categories of “organizing”, “arming”, “disciplining”, “governing”, and “training”. For the Militia incorporated in that system were “the Militia of the several States”, already in existence throughout the country, not some new “Militia of the United States” the characteristics of which Congress would be entitled to stipulate. Yet the federal system also precluded unlimited authority for the States to regulate their Militia in some possibly slipshod fashion, because the Militia were constitutional establishments that might be “call[ed] forth” to “be employed in the Service of the United States”, (footnote 8) and on the preparedness of which the very survival of the Union might depend. (footnote 9)

Immediately prior to the Constitution, the Articles of Confederation provided that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered”. (footnote 10) Once again, though, the document did not specify what “well” and “sufficiently” actually entailed. Instead, the Articles left to the States the responsibilities to fix and apply the necessary standards. Such an approach was perfectly satisfactory at that time, though, because the States were then fixing and applying adequate standards—and as States or Colonies had been doing so for more than a century theretofore—in a manner that was certain, consistent, comprehensive, and completely ascertainable, because it had been and was being written down in hundreds of Militia statutes enacted throughout the pre-constitutional period. These statutes supplied the actual, fully verifiable meaning of “well regulated and disciplined militia, sufficiently armed and accoutred” as Americans had understood those terms for decades and even generations prior to ratification of the Articles, the Constitution, and the Bill of Rights. (footnote 11)

The legal history formed the context in which the Articles of Confederation, the Constitution, and the Second Amendment were adopted.

The legal history formed the context in which the Articles, the Constitution, and the Second Amendment were adopted. It provided the standards according to which Militia were judged to be “well regulated”—standards which were already fixed, which had proven eminently workable over time, and with which everyone in every State was or could easily have become familiar. Indeed, the very source of the term “regulated” in respect of the Militia is the body of pre-constitutional Militia Acts. (footnote 1) And the principles these Acts applied uniquely defined “well regulated”—or legislators would never have persisted in employing them in one statute after another, decade after decade. So no need existed for the Articles, then the Constitution, and finally the Second Amendment to specify in detail what these standards were. The “well regulated and disciplined militia” required by the Articles; “the Militia of the several States” which the original Constitution incorporated into its federal system under the authority of Congress “[t]o provide for organizing, arming, and disciplining”; and the “well regulated Militia” the Second Amendment identified as “necessary to the security of a free State” then existed in fact within each of the several States, “well regulated” in both fact and law according to the principles developed, proven, and universally applied during pre-constitutional times. Thus, because they arose out of a long and consistent history, and their meanings were well known in fact and well settled in law, the words and phrases used in the Articles, in the original Constitution, and in the Second Amendment must be taken to have been used or incorporated by reference in the exact sense they had acquired during the pre-constitutional era. (footnote 2)Surely WE THE PEOPLE would never have included “the Militia of the several States” as permanent parts of their federal system, and assigned explicitly to them alone the all-important responsibilities “to execute the Laws of the Union, suppress Insurrections and repel Invasions”, had they not believed, for good and sufficient reasons on adequate evidence, that those very Militia, as they existed in 1788 and were anticipated to continue to exist throughout the immediate future, were “well regulated” in both fact and law. (footnote 3)

As an example, in their titles, their bodies, or both, Rhode Island’s pre-constitutional Militia statutes often explicitly described themselves as “regulating” her Militia:

• [1699, 1701, and 1705] “An Act for the better regulating the militia, and for punishing offenders as shall not conform to the law thereunto relating.”(footnote 1)

• [1718, 1730, and 1744] “An Act for the Repealing several Laws relating to the Militia within this Colony, and for further Regulation of the same.”(footnote 2)

• [1726] “An Act for regulating the Militia, and the Election of the Officers of each respective Company in this Colony.” (footnote 3)

• [1730] “[N]o Constraint shall be laid upon the Conscience of any Person whatsoever, by Force of any Act or Law for the keeping up or regulating the Militia within this Colony”.(footnote 4)

• [1755] Petitioners seeking a charter for an Independent Company “proposed the Laws of the Colony made for regulating the Militia, for the Rule of their Conduct”.(footnote 5)

• [1755] “An ACT in Addition to the several Acts regulating the Militia in this Colony.”(footnote 6)

• [1756] “An ACT in Addition to, and Amendment of the several Acts regulating the Militia.”(footnote 7)

• [1766] “An ACT, regulating the Militia in this Colony.”(footnote 8)

• [1774] An ACT in addition to, and amendment of, an Act entitled “An Act regulating the Militia of this Colony[”].(footnote 9)

• [1779] “WHEREAS the Security and Defence of all free States essentially depend, under God, upon the Exertions of a well regulated Militia: * * * Wherefore, for the better forming, regulating and conducting the military Force of this State, Be it Enacted * * * [.]” “An ACT for the better forming, regulating and conducting the military Force of this State.”(footnote 10)

Footnotes:

1.) EN-2— This statute is dated “1699” in LAWS AND ACTS OF RHODE ISLAND, AND PROVIDENCE PLANTATIONS Made from the First Settlement in 1636 to 1705, at 92, Reprinted in J.D. Cushing, Editor, The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations (Wilmington, Delaware: M. Glazier, 1977), at 107. Dated “1701”, it appears At the Generall Assembly and Election held for the Collony at Newport, the 7th of May, 1701, in Rhode Island Records, Volume 3, at 430. Reprinted from a compilation dated “1705”, it appears in Military Obligation, Rhode Island, at 37. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

2.) EN-3 — LAWS Made and Past by the General Assembly of His Majesties Colony of Rhode-Island, and Providence-Plantations, in New-England, begun and Held at Newport, the Seventh Day of May, 1718, and Continued by Adjournments to the Ninth Day of September following, in Public Laws of Rhode Island, 1719, at 85; in Public Laws of Rhode Island, 1730, at 90; and in Public Laws of Rhode Island, 1744, at 65. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

3.) EN-4 — Proceedings of the General Assembly, held for the Colony of Rhode Island and Providence Plantations, at Newport, the 14th day of June, 1726, in Rhode Island Records, Volume 4, at 377, identified by title when repealed by An Act for repealing an Act made and pass’d the Fourteenth Day of June, 1726, being, An Act for regulating the Militia, and the Election of the Officers of each respective Company in this Colony, LAWS, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island and Providence-Plantations, in New-England, held at Newport, on the first Wednesday of May, 1730, in Public Laws of Rhode Island, 1730, at 212. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

4.) EN-5 — An Act for the Relief of Tender Consciences, and for preventing their being burthened with Military Duty, LAWS, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island and Providence-Plantations, in New-England, held at Newport, by Adjournment, on the third Monday of June, 1730, in Public Laws of Rhode Island, 1730, at 217. The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States”by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

5.) EN-6 — An ACT for erecting an ARTILLERY COMPANY in the Towns of Westerly and Charlestown, At the GENERAL ASSEMBLY of the Governor and Company of the English Colony of Rhode-Island, and Providence- Plantations, in New-England in America; begun (in Consequence of Warrants issued by his Honour the Governor) and held at Providence, on Wednesday the first of January, One Thousand Seven Hundred and Fifty- five, in Rhode Island Acts and Resolves, Volume 2, at {63}. The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., page 71.

6.) EN-7 — At the GENERAL ASSEMBLY of the Governor and Company of the English Colony of Rhode-Island, and Providence-Plantations, in New-England in AMERICA; begun and held by Adjournment at Providence, on the first Monday of February, One Thousand Seven Hundred and Fifty-five, in Rhode Island Acts and Resolves, Volume 2, at {71}. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

7.) EN-8 — At the GENERAL ASSEMBLY of the Governor and Company of the English Colony of Rhode-Island, and Providence-Plantations, in New-England in AMERICA; begun and held by Adjournment at South-Kingston, upon the last Monday in February, One Thousand Seven Hundred and Fifty-six, in Rhode Island Acts and Resolves, Volume 2, at {73}. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

8.) EN-9 — Public Laws of Rhode Island, 1767, at 179. This Act was part of An ACT, establishing the Revisement of the Laws of this Colony, and for the putting the same in Force, in A LAW, Made and passed at the General Assembly of the Colony of Rhode-Island and Providence Plantations, held at Providence on the First Monday in December, 1766, in Public Laws of Rhode Island, 1767, at 3-5. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

9.) EN-10 — At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the English Colony of Rhode-Island, and Providence Plantations, in New-England, in America, begun and holden, in Consequence of Warrants issued by his Honor the Governor, at Providence, within and for the said Colony, on the First Monday in December, One Thousand, Seven Hundred and Seventy-four, in Rhode Island Acts and Resolves, Volume 7, at {150}. Also in Rhode Island Records, Volume 7, at 269. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

10.) EN-11 — AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {29}. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

Virginia’s pre-constitutional Militia statutes identified themselves as ‘regulating’ or as ‘regulations’ of her Militia. Fifteen Militia statutes—from 1723 to 1785.

Similarly, in Virginia the pre-constitutional statutes identified themselves as “regulating” or as “regulations” of her Militia:

• [1723] “WHEREAS a due regulation of the Militia is absolutely necessary for the defence of this country * * * .” “An Act for the settling and better Regulation of the Militia.”(footnote 1)

• [1738] “An Act, for the better Regulation of the Militia.”(footnote 2)

• [1754] “An Act for amending the act, intituled, An Act for the better regulation of the militia.”(footnote 3)

• [1755] “An Act for the better regulating and training the Militia.”(footnote 4)

• [1757] “An Act for the better regulating and disciplining the Militia.”(footnote 5)

• [1759] “An Act for continuing an Act, intitutled, An Act for the better regulating and disciplining the Militia.”(footnote 6)

• [1762] “An Act for amending and further continuing the act for the better regulating and disciplining the Militia.”(footnote 7)

• [1766] “An act to continue and amend the act for the better regulating and disciplining the militia.”(footnote 8)

• [1771] “An act for further continuing the act, intituled An act for the better regulating and disciplining the militia.”(footnote 9)

• [1779] An act for the better regulation and discipline of the militia.”(footnote 11)

• [1781] “An act to amend the act for regulating and disciplining the militia, and for other purposes.” (footnote 12)

• [1782] “An act to amend the act, intituled, An act for establishing and regulating the militia.” (footnote 13)

• [1784] “An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections.”(footnote 14)

• [1785] “An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections.”(footnote 15)

Footnotes:

1.) EN-12 — CHAP. II, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT Williamsburg, the fifth day of December, 1722, and by writ of prorogation, begun and holden on the ninth day of May, 1723, in Laws of Virginia, Volume 4, at 118. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

2.) EN-13 — CHAP. II, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 16. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

3.) EN-14 — CHAP. II, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, 1752. And from thence continued by several prorogations, to Thursday the 14th day of February, 1754, in Laws of Virginia, Volume 6, at 421. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

4.) EN-15 — CHAP. II, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 530. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

5.) EN-16 — CHAP. III, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday, the twenty-fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty-seven, in Laws of Virginia, Volume 7, at 93. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States”by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 71.

6.) EN-17 — CHAP. IV, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the fourteenth day of September, 1758; and from thence continued by several prorogations to Thursday the twenty-second of February, 1759, in Laws of Virginia, Volume 7, at 274. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

7.) EN-18 — CHAP. III, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Tuesday the 2d of November[,] 1762, in Laws of Virginia, Volume 7, at 534. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

8.) EN-19 — CHAP. XXXI, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November, 1766, in Laws of Virginia, Volume 8, at 241. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

9.) EN-20 — CHAP. II, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, the seventh day of November, one thousand seven hundred and sixty nine, and from thence continued by several prorogations, and convened by proclamation the eleventh day of July, one thousand seven hundred and seventy-one, in Laws of Virginia, Volume 8, at 503. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

10.) EN-21 — CHAP. I, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday the fifth day of May, one thousand seven hundred and seventy seven, in Laws of Virginia, Volume 9, at 267. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

11.) EN-22 — CHAP. XX, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday, the third of May, one thousand seven hundred and seventy-nine, in Laws of Virginia, Volume 10, at 83. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

12.) EN-23 — CHAP. VIII, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the seventh day of May, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 416. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

13.) EN-24 — CHAP. XLIV, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday, the sixth day of May, one thousand seven hundred and eighty-two, in Laws of Virginia, Volume 11, at 173. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

14.) EN-25 — CHAP. XXVIII, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October, one thousand seven hundred eighty-four, in Laws of Virginia, Volume 11, at 476. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

15.) EN-26 — CHAP. I, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 9. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 72.

Virginians better ‘regulate’ their Militia pursuant to statute when complaints arose in 1738 and 1755 that it was ineffective.

Whenever complaints arose (as in 1738 and 1755) that the existing establishment “hath proved very ineffectual”, remedial action was taken specifically to improve the Militia, in terms of “training the persons listed to serve therein, and reducing them under a proper discipline” more efficaciously than before, not to replace that institution with some other, wholly untried means of defense. (footnote 1)

Footnotes:

1.) EN-726 — CHAP. II, An Act, for the better Regulation of the Militia, § I, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 16; CHAP. II, An Act for the better regulating and training the Militia, § I, At a General Assembly, begun and held at the College in the City of Williamsburg, on Thursday the twenty seventh day of February, one thousand seven hundred and fifty two. And from thence continued by several prorogations, to Tuesday the fifth day of August, one thousand seven hundred and fifty five, in Laws of Virginia, Volume 6, at 530. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 315.

Virginians realized that their Militia was the community’s ‘proper defence in time of danger’ in their Declaration of Rights in 1776.

“THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; * * ** * * [t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them[; and]

* * * * *

* * * [t]hat a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state[;]” (footnote 1)

Virginia Declaration of Rights 1776

Footnotes:

1.) EN-727 — A DECLARATION of RIGHTS made by the representatives of the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as the basis and foundation of government, 12 June 1776, Articles 1, 2, and 13, At a General Convention of Delegates and Representatives, from the several counties and corporations of Virginia, held at the Capitol in the City of Williamsburg, on Monday the 6th of May, 1776, in Laws of Virginia, Volume 9, at 109, 111. Also see The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 315-316.

In ratifying the Second Amendment between 1789 and 1791, WE THE PEOPLE emphasized that the Militia must always and everywhere be sufficiently “well regulated” to be capable of fulfilling all of the duties “necessary to the security of a free State”. In that context, the meaning of “well regulated” could not possibly have been treated as an empty vessel into which public officials, politicians, special-interest groups, legal theorists among the intelligentsia, or anyone else could in the future pour whatever tendentious or even spurious legalistic bellywash they might wish. (footnote12)

When the Second Amendment referred to “A well regulated Militia”, the words “well regulated militia”, “to better regulate the militia”, “for better regulation of the militia”, and the like had been used in the titles and bodies of pre-constitutional Militia statutes, repeatedly again and again, in statute after statute the American Colonies and then independent States for over 150 years. The same statutory pattern continued in all the several States after the ratification of the Constitution until Congress, in 1903, purported to nationalize “the Militia of the several States” into a “standing army”—The National Guard.